The Study on the Infringement Test for Design Patent： In terms of the U.S. Perspective

• Main Authors: Chen, Ying-Ju, 陳盈如
• Other Authors: Liu, Shang-Jyh
• Format: Others
• Language: zh-TW
• Published: 2015
• Online Access: http://ndltd.ncl.edu.tw/handle/5jn73z

碩士 === 國立交通大學 === 科技法律研究所 === 103 === Since the patent war between Apple and Samsung in 2011, design patents, which were often ignored in the past, began to take the center stage. The substantial scope of design patents depends on the scope that they can successfully claim infringement. Therefore, this study will center on the infringement test for design patent in terms of the U.S. perspective. In 2008, the United States Court of Appeals for the Federal Circuit (CAFC) caused a revolution in the infringement test for design patent in its en banc decision in Egyptian Goddess, Inc. v. Swisa, Inc.. In the en banc decision, CAFC denied the necessity of detailed verbalized claim construction and overturned the point of novelty test since it overruled the principle that designs ought to be viewed as a whole, which is the nature of design. The point of novelty test was replaced by amended ordinary observer test, which connected the prior arts with ordinary observers. This way struck a balance between the restriction of prior arts and the principle that designs ought to be viewed as a whole, and suggested the danger of infringement procedure that cause the outcome to obey the principle. We can learn a lesson from the en banc decision. With these findings, the study goes back to the infringement test for design patent in Taiwan to see if any problem exist, and find there are some rules to improve. This study tries to offer some possible suggestions to resolve those problems and suggestions for those who own design patents. Hope this study could benefit current practices.